The Alex Rudnicki case

Alexander Rudnicki with his mother, Pamela, who says her 11-year-old son has trouble making conversation.

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lexander Rudnicki won't ever go to college, drive a car or make his way up the corporate ladder.

That's because he suffered damage to his brain during his birth on Oct. 5, 2005, at Memorial Hospital, according to allegations in a lawsuit filed by his parents three years ago.

Now, the city, which owns the hospital, has agreed to settle the case, while an El Paso County jury recently awarded the child, now nearing his 12th birthday, $4 million from the attending doctor, Peter Bianco, after finding him negligent.

The city won't discuss the case other than to give some information about the settlement money's source. The parents' attorney, David Woodruff of Denver, says the jury award — which he says falls short of the amount necessary to care for Alex during his lifetime — could be limited by state laws that curtail the amount of damages plaintiffs can collect from medical providers.

"If that same doctor had run into Alex at an intersection in his car, Alex wouldn't have that limitation," Woodruff says.

According to court documents, Alex's mother, Pamela Rudnicki, was admitted to Memorial on Oct. 4, 2005, for the purpose of inducing labor, "due to large gestational size of her fetus ... and small mother," the lawsuit says, while her husband, Francis, was serving with the military on an overseas deployment.

The lawsuit contends that although Bianco should have known Mrs. Rudnicki wouldn't be able to deliver the baby due to her small pelvis, he "failed to suggest or offer cesarean section" or other options. She tried to "push" for 2.5 hours at the hospital staff's urging, but the infant failed to descend into the birth canal.

Woodruff says via email that the Memorial staff improperly used a drug designed to induce labor. It was administered to Mrs. Rudnicki repeatedly in increased doses over a 12-hour period, despite evidence it could hurt her baby. The dosage exceeded the hospital's maximum allowed level, with Bianco's approval, which "had the effect of decreasing oxygen to the baby," he says.

"He was not yet injured," Woodruff adds, "but the decreased oxygenation over hours set him up with 'decreased fetal reserves,' which means he was basically out of oxygen and about to suffer injury."

Bianco decided to perform operative vaginal delivery using vacuum extraction, the lawsuit says. That was a bad decision, Woodruff asserts, because "the fetal position was unclear or unknown" and the baby was bigger than his mother's pelvic area.

According to the Mayo Clinic, vacuum extraction is a procedure sometimes done during the course of vaginal childbirth in which a health care provider applies a soft or rigid cup with a handle and a vacuum pump to the baby's head to help guide the infant out of the birth canal. "Vacuum extraction poses a risk of injury for both mother and baby," mayoclinic.org says. "If vacuum extraction fails, a cesarean delivery (C-section) might be needed."

Before using the vacuum device, Bianco didn't obtain informed consent from Mrs. Rudnicki and didn't tell her about the possible risks, shlee says, adding, "If he had, I never would have agreed to it."

"He misplaced the device on the back and side of Alex's head instead of on the top as the device was designed to be used," Woodruff says via email. "Normally it takes a few minutes. Instead Alex was stuck in the birth canal for 25 minutes. After 1-2 pulls, Alex's heart rate showed he was in deep trouble. Dr. Bianco kept pulling & pulling, and finally he pulled so hard the vacuum device popped off. He put it back on and finally got Alex out."

According to the lawsuit, by then, Alex had suffered "severe scalp abrasions and bruising on his skull" and was "noted to be floppy, quiet and unresponsive. The infant was observed to have "severely diminished function" and was "immediately" taken to the neonatal intensive care unit before being transferred to Children's Hospital in Denver where "it was determined that he had suffered injuries to his brain."

The lawsuit also alleged that after years of treatment and therapy, Alex remains significantly mentally disabled with reduced cognitive function. It noted, "He will likely be unable to meaningfully benefit from education, and will likely be unable to live independently or be gainfully employed as an adult."

Woodruff says Alex's IQ is 68 to 70, which equates to "intellectually disabled."

Alex attends elementary school on Fort Carson where he spends half days in special education and half days in the regular classroom.

"He reads and writes with great difficulty," Woodruff says. "He also has a right-sided hemiplegia, which means weakness. He cannot open a door with his right hand. He cannot button pants or zip a zipper because of the motor function problems."

His mother tells the Indy that Alex finds conversing with others difficult. "He has trouble," she says. "It takes him so long to understand what you're saying, so he'll lose you in conversation. On a really, really good day, we'll give him four words, and at the end of 30 minutes he can still remember those four words."

Alex, who's been in therapy since birth, will start sixth grade this fall but reads at the kindergarten level, she says.

Courtesy Pamela Rudnicki

Alex, pictured with his mom, will need help his whole life.

Bianco didn't return a phone call seeking comment, but the doctor maintained in court documents that he "exercised prospectively reasonable medical judgment" in the Rudnicki case and denied that his care was negligent or caused permanent injury.

"Our focus from the beginning," he continues, "was to determine if the actions of the medical providers and Dr. Bianco met the standard of care. Based on the situation, a thorough review of the care, and expert testimony, we believe the care provided was appropriate in regards to what a reasonable physician would do in similar circumstances."

But on June 23, a six-person jury delivered a verdict against him, awarding $4 million in damages for past and future medical expenses and lost earnings. When prejudgment interest is added at 9 percent per year from date of injury, along with litigation expenses that include expert testimony, court reporter and videographer fees, and visual aids for use in the courtroom, the total could reach $8 million.

Woodruff says in an interview that Bianco's insurance carrier, Copic Insurance Co., is trying to persuade the trial judge to reduce the verdict to $1 million, claiming that caps on damages for pain and suffering in medical malpractice cases established in a 1988 law apply to Alex's case. The defense also wants to bar Alex from recovering the roughly $3.5 million in prejudgment interest that Woodruff says would be added to any civil jury verdict. But the Colorado Legislature in 2003 amended the 1988 caps on damages in medical malpractice cases to also prohibit patients like Alex from being paid prejudgment interest. Lastly, the defense wants to prevent Alex from receiving $325,000 designated by the jury for his past medical expenses, including at Children's Hospital's neonatal ICU after he was born and for subsequent physical, occupational and speech therapy.

If the defense prevails on that point, Woodruff vowed to appeal, noting the costs stemmed from Bianco's negligence that caused Alex's injuries. "It would be fundamentally unfair to interpret the law in such a way that prohibits Alex — or any child — from recovering his actual medical expenses," he says.

Woodruff called the idea of reducing the jury award or omitting prejudgment interest "a complete travesty of justice for this little boy."

Pamela Rudnicki says she's grateful to jurors. "It's been a very long 11.5 years getting to that point," she says. "We were thankful, humbled they decided in our favor and saw that Alex will need help his whole life."

Meantime, the city agreed to settle several months before trial, Woodruff reports, though the city declined to comment on the case and responded via email to two records requests from the Indy since June 23 by saying, "The settlement document has not been finalized and therefore there is no responsive record to provide at this time."

On May 3, Woodruff and attorneys for the city filed a notice saying Alex is prepared to dismiss all claims against Memorial if the probate court approves the settlement. Probate court handles cases involving structured settlements on behalf of minors, such as in the case of Luzdeestrella Flores-Rios, whose healthy kidney was removed in 2010 by mistake at Memorial, which paid $1 million to settle a lawsuit.

Asked the size of the city's settlement, Woodruff says the amount is currently confidential, but noted it's a matter of public record the city has a $1.75 million policy limit applicable to this case.

Alexander Rudnicki's birth predated the city's 2012 lease of Memorial to University of Colorado Health, meaning the city, not UCH, is responsible for defending against the lawsuit, paying to settle it or taking its chances with a jury. This was precisely why the city set aside $50 million from the original one-time $259million lease payment to the city from UCHealth — to cover unknown liabilities.

Since then, $50 million of the payment has been transferred to the Colorado Springs Health Foundation, which disperses the money from lease payments to programs designed to improve the community's health. Half that was made available for foundation grants on Oct. 1, 2015, while the other $25 million remains restricted until Oct. 1, foundation director Cari Davis says via email.

That means the foundation can't allocate or invest that money in long-term investments until after that date. (The initial $259 million payment also funded the city's $190 million payment to settle a lawsuit with the Public Employees' Retirement Association, as well as payments for a separate pension plan for certain Memorial employees, legal fees, insurance and other costs.)

But the lease money held by the foundation apparently isn't the source of the money the city will use to settle this lawsuit.

City spokesperson Dee Brown says in an email that the City's Risk Management Department reports the settlement will be paid by the Risk Reciprocal Group that insured Memorial during the period of the incident. The deductible of $25,000 will be paid from the Memorial Insurance Fund, she says.

According to city records, no other similar lawsuits are pending against Memorial based on incidents predating the 2012 lease.

Colorado regulatory agencies report that Bianco's physician's license is intact and that "there [are] no Discipline or Board Actions on file for this credential," and Memorial reports Bianco "is and has been a practicing physician with Memorial Hospital for many years."